LARRY EDWARD ADAMS V. E. K. MCDANIEL ET AL

Filing 290

ORDER that 285 petitioner's Motion for Relief from Judgment pursuant to Rule 60(b)) is DENIED. FURTHER ORDERED that a certificate of appealability is DENIED with respect to this decision.FURTHER ORDERED that 288 petitioner's Motion for Extension of Time is GRANTED nunc pro tunc as of February 3, 2017. Signed by Judge Kent J. Dawson on 2/14/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 LARRY EDWARD ADAMS, 10 Petitioner, 11 vs. 12 TIMOTHY FILSON,1 et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) / 2:98-CV-1441-KJD-PAL ORDER 15 16 Petitioner Adams is a Nevada prisoner sentenced to death. On June 12, 2009, this court 17 entered a final judgment denying Adams’ petition for writ of habeas corpus under 28 U.S.C. § 2254. 18 ECF No. 235. Now before the court is Adams’ motion for relief from judgment pursuant to Rule 19 60(b) of the Federal Rules of Civil Procedure. ECF No. 280. Adams argues that his death sentence 20 is unconstitutional in light of the Supreme Court’s decision in Hurst v. Florida, 136 S.Ct. 616 21 (2016). 22 23 In Hurst, the Court held that Florida's capital sentencing scheme violates the Sixth Amendment right to a jury trial because, under the scheme, the jury renders an advisory verdict but 24 25 26 1 Timothy Filson, current warden of Ely State Prison, is substituted as respondent in place of his predecessor E.K McDaniel. See Fed. R. Civ. P. 25(d) (providing that a public “officer’s successor is automatically substituted as a party” when his or her predecessor “ceases to hold office while the action is pending”). 1 the judge makes the ultimate sentencing determination. 136 S.Ct. at 624. In reaching that holding, 2 the Court relied upon Ring v. Arizona, 536 U.S. 584 (2002), which held that any fact necessary for 3 the imposition of the death penalty must be found by a jury, not a judge. 536 U.S. at 589. 4 Although a jury imposed the death penalty in Adams’ case, he claims that his death sentence 5 is nonetheless unconstitutional under Hurst because the jury was not instructed that it must find 6 beyond a reasonable doubt that there are no mitigating circumstances sufficient to outweigh the 7 aggravating circumstances. Adams reasons that, if the weighing of aggravating and mitigating 8 factors is an element that must be submitted to the jury as required by Hurst, it necessarily follows 9 that the reasonable doubt standard imposed by the Fifth Amendment applies to the weighing process. 10 Adams’ arguments notwithstanding, this court is without jurisdiction to rule upon a motion 11 seeking relief from judgment while Adams’ case is on appeal to the Ninth Circuit. See Williams v. 12 Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (concluding that district court lacked jurisdiction over 13 petitioner’s Rule 60(b) motion filed subsequent to notice of appeal). When a case is on appeal, a 14 party may only “ask the district court for an indication that it is willing to entertain a Rule 60(b) 15 motion. If the district court gives such an indication, then the party should make a motion in the 16 Court of Appeals for a limited remand to allow the district court to rule on the motion.” Sierra 17 Pacific Industries v. Lyng, 866 F.2d 1099, 1113 n. 21 (9th Cir. 1989); see also, Gould v. Mutual Life 18 Insurance Co., 790 F.2d 769, 772 (9th Cir. 1986). 19 This practice has been adopted by the Federal Rules of Civil Procedure. Rule 62.1(a) states, 20 “If a timely motion is made for relief that the court lacks authority to grant because of an appeal that 21 has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the 22 motion; or (3) state either that it would grant the motion if the court of appeals remands for that 23 purpose or that the motion raises a substantial issue.” Cognizant of this procedure, Adams asks this 24 court to enter a ruling under the third option, which is often referred to as an “indicative ruling.” See 25 Fed. Ct. App. Manual § 15:12.5 (5th ed.). 26 2 Rule 60(b) applies to habeas proceedings, but only in conformity with AEDPA,2 including 1 2 the limits on successive federal petitions set forth at 28 U.S.C. § 2244(b). Gonzalez v. Crosby, 545 3 U.S. 524, 529 (2005). If a Rule 60(b) motion seeks to add a new ground for relief or attack this 4 court's previous resolution of a claim on the merits, it is, in substance, a successive habeas petition 5 subject to the requirements of 28 U.S.C. § 2244(b). Id. at 531. If, however, the motion “attacks, not 6 the substance of the federal court's resolution of a claim on the merits, but some defect in the 7 integrity of the federal habeas proceedings,” the motion is not a successive habeas petition. Id. at 8 532. 9 Adams’ motion clearly falls in the former category. Accordingly, this court is not permitted 10 to address the merits of Adams’ Hurst-based claim until Adams obtains authorization from the court 11 of appeals pursuant to 28 U.S.C. § 2244(b)(3). 12 Adams argues that his motion is not a successive petition because his appeal of this court’s 13 final order is still pending. He does not, however, cite to any controlling authority for the 14 proposition that the pendency of his appeal from the denial of his first habeas petition excuses him 15 from obtaining permission from the court of appeals to raise his new claim. While a Second Circuit 16 case arguably supports Adams’ position (Whab v. United States, 408 F.3d 116 (2nd Cir. 2005)), 17 opposing cases from other circuits are more persuasive. See Ochoa v. Sirmons, 485 F.3d 538, 541 18 (10th Cir. 2007) (holding that no controlling authority “suggests that whether a Rule 60(b) motion or 19 other procedural vehicle may be used to circumvent § 2244(b) depends on the incidental fact that an 20 appeal is or is not pending from the underlying habeas proceeding”) and Phillips v. United States, 21 668 F.3d 433, 435 (7th Cir. 2012) (“Nothing in the language of § 2244 or § 2255 suggests that 22 time-and-number limits are irrelevant as long as a prisoner keeps his initial request alive through 23 motions, appeals, and petitions.”). 24 Adams also argues that, even if § 2244 does apply, he is still entitled to relief because § 25 2 The Antiterrorism and Effective Death Penalty Act. 26 3 1 2244(b)(2)(A) permits him to pursue a claim that “relies on a new rule of constitutional law made 2 retroactive to cases on collateral review by the Supreme Court that was previously unavailable.” 3 That provisions does not, however, provide a basis for this court to issue an indicative ruling in 4 Adams’ favor. Setting aside the absence of a decision from the Supreme Court making Hurst 5 retroactive,3 the determination under § 2244(b)(2)(A) is to be made by the court of appeals, not this 6 court. See 28 U.S.C. § 2244(b)(3). 7 Based on the foregoing, this court must deny Adams’ motion for relief under Rule 60(b). 8 In the event Adams chooses to appeal this decision, this court denies a certificate of 9 10 appealability (COA). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a 11 substantial showing of the denial of a constitutional right." With respect to claims rejected on the 12 merits, a petitioner "must demonstrate that reasonable jurists would find the district court's 13 assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 14 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA 15 will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the 16 denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id. 17 The issue of whether Adams’ Rule 60(b) motion should be treated as a successive petition 18 under Gonzalez v. Crosby is not debatable among reasonable jurists and, therefore, does not warrant 19 the issuance of a COA. 20 21 22 23 IT IS THEREFORE ORDERED that petitioner's motion for relief from judgment pursuant to Rule 60(b) (ECF No. 285) is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED with respect to this decision. 24 25 3 The Court has held that Ring, the case on which Hurst is premised, applies only prospectively. Schriro v. Summerlin, 542 U.S. 348, 358 (2004). 26 4 1 \\\ 2 \\\ 3 \\\ 4 5 6 IT IS FURTHER ORDERED that petitioner’s motion for extension of time (ECF No. 288) is GRANTED nunc pro tunc as of February 3, 2017. DATED: February 14, 2017 7 8 _________________________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5

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